Why do we need a list of copyright principles? Why, to sort through SCO's Tweedledum/Tweedledee logic, silly ('I know what you're thinking about,' said Tweedledum: 'but it isn't so, nohow.'
'Contrariwise,' continued Tweedledee, 'if it was so, it might be; and if it were so, it would be; but as it isn't, it ain't.').

IBM starts with foundational baby steps: You can't say someone infringed your copyrights if you don't own the copyrights. Duh. I can just see SCO slapping its forehead. "NOW they tell us!"

IBM goes on step by step to show the current state of copyright law as it applies to computer software, as opposed to, say, poetry or novels or music. Here's a thought:

Material is not infringing if it is not substantially similar to the copyrighted work.

Well, that should save some time in SCO's spoliation fantasy. The poor thing still has to leap over the ownership bar first there too. Here's another:

Actual damages are not available where plaintiff has suffered no harm.

I'd really love to see SCO lay out on the table specific damages from ELF, for example. Or Streams. You know, the code Caldera so wanted included in Linux. Headers brings to mind a few more principles:

Material that is dictated by the compatibility requirements of other programs with which it is designed to interact is unprotectable....Material that is dictated by programming standards is unprotectable.... Material that is dictated by standard programming practices is unprotectable.... Material that is dictated by computer hardware design standards is unprotectable.... Material that is dictated by the practices and/or demands of the industry being serviced is unprotectable.

There are many more, and you'll enjoy reading the list and noting the cases proving each one. Then there is the supreme hurdle for SCO, even if it did own the copyrights, which Novell's declarants supporting its four new summary judgment motions have just convincingly demonstrated just this week doesn't appear to be the case:

To claim non-statutory damages for copyright infringement, a plaintiff must show that it was injured by the alleged infringement.

Uh oh. SCO didn't register the copyrights it now claims until after it filed the lawsuit against IBM, so for anything prior to that registration date, if it can ever prove the registration is valid, it must show actual damages, not statutory. I first explained that back in July of 2003, when SCO registered its alleged copyrights with the Copyright Office. SCO must show a direct causal link, in other words, between the copyright infringement and real damage it suffered. Real means that an accountant can put a number on a piece of paper with an arrow to the infringement. Good luck with that. For that matter, it should be hilarious indeed to hear SCO argue in what way IBM has benefitted financially from header files and Streams or from donating JFS to Linux. For good measure, IBM throws in a list of questions to ask regarding both SCO's copyright claims and its contract claims.

Folks, IBM is having fun.

********************************

ADDENDUM A

Selected Copyright Principles

1.

A party cannot assert copyright infringement over
materials it does not own. SeeTuff ‘N’ Rumble Met, v. Profile Records.
Inc., No. 95 Civ. 0246,1997
WL158364, at *3 (S.D.N.Y. April 2, 1997) (granting summary judgment
dismissing copyright infringement claim where “Tuff
has not met its burden of
proving it is the owner of a valid copyright”).

2.

Plaintiff bears the burden of showing it is the author of
the copyrighted material.
Community for Creative Non-Violence v. Reid, 490
U.S. 730, 737, 109 S. Ct.
2166, 2171, 104 L.Ed.2d 811(1989) (holding that to show ownership of a valid
copyright, a party must show it is the party “who actually
create[d] the work” by
“translating] an idea into a fixed, tangible expression
entitled to copyright
protection”).

3.

A defendant does not infringe if it has a valid license
to exercise those rights that
are claimed to be infringing. SeeBourne v. Walt Disney
Co., 68 F.3d 621, 632
(2d Cir. 1995) (affirming finding of no infringement where defendant
“was
licensed by [plaintiff] to exploit the copyrighted compositions in
connection with
its motion pictures”).

4.

An idea is unprotectable. SeeCountry
Kids’ N City Slicks. Inc. v. Sheen, 77 F.3d
1280, 1286 (10th Cir. 1996) (“we conclude that the district
court correctly
characterized the wooden form of the traditional paper doll as an
[unprotectable]
idea rather than a protected expression”).

5.

Material that is a procedure, process, system, or method
of operation is
unprotectable. SeeMitel, Inc. v. Iqtel, Inc., 896 F.
Supp. 1050, 1055 (D. Colo.
1995) (“command codes” held unprotectable in part where
they “are simply a
procedure, process, system, and method of operation”).

6.

Material that is a concept, principle, or discovery is
unprotectable. SeeGates
Rubber Co. v. Bando Chem. Indus., Ltd., 9 F.3d 823, 833 (10th
Cir. 1993) (stating
that “[i]n no case does copyright protection for an original
work of authorship
extend to any . . . concept, principle, or discovery” (quoting
17 U.S.C. 102(b))).

7.

Material that is unoriginal is unprotectable. SeeMitel, Inc. v. Iqtel, Inc., 124
F.3d1366, 1373 (10th Cir. 1997) (“registers” and
“descriptions” held
unprotectable because “Mitel used such minimal effort and
judgment to select the
‘registers’ and ‘descriptions’ that they are
unoriginal under section 102(a))”).

8.

Material that can be expressed in only a limited number
of ways is unprotectable.
SeeBaystate Tech., Inc. v. Bentley Sys.,
Inc., 946 F. Supp. 1079, 1087-88 (D.
Mass. 1996) (names given to computer file held unprotectable because
“the name
of a file is typically related to its function. A file that controls
or creates color has
a name in which some form of the word ‘color’ appears. In
that case, the name of
a file, ‘color’, merges with the idea or function of the
file, ‘to create a color’”).

9.

Material that is dictated by the compatibility
requirements of other programs with
which it is designed to interact is unprotectable. SeeComputer Assocs. Int’l, Inc.
v. Altai, Inc., 982 F.2d 693, 715 (2d Cir. 1992) (list of
services required for job
scheduling program was unprotectable because it was “dictated
by the nature of
the other programs with which it was to interact. . . .”).

Material that is dictated by standard programming
practices is unprotectable. SeeMitel, Inc. v. Iqtel, Inc., 124 F.3d 1366, 1375
(10th Cir. 1997) (certain values held
unprotectable where “[s]tandard programming conventions such as
‘1’ for ‘on’
and ‘0’ for ‘off’ determined some of the
descriptions and values.”).

12.

Material that is dictated by computer hardware design
standards is unprotectable.
SeeNEC Corp. & NEC Electronics, Inc. v.
Intel Corp., No. C-84-20799, 1989
WL67434, at *16 (N.D. Cal. Feb. 6,1989) (work held unprotectable
because “the
expression of NEC’s microcode was constrained by the use of the
macroinstruction set and hardware of the 8086/88”).

13.

Material that is dictated by the practices and/or demands
of the industry being
serviced is unprotectable. SeeMitel, Inc. v. Iqtel,
Inc., 124 F.3d 1366, 1375 (10th
Cir. 1997) (certain “values” held unprotectable where
“many of the values were
selected by Mitel’s product management department in response
to customer
demand or to ensure compatibility with equipment already installed in
the central
offices of Mitel’s customers”).

14.

Material found in the public domain is unprotectable.
SeeHarbor Software, Inc.
v. Applied Systems, Inc., 925 F. Supp. 1042, 1051 (S.D.N.Y.
1996) (work held
unprotectable because these “steps are contained in computer
programming books
and therefore constitute standard techniques found in every database
program”).

15.

Material is not infringing if it is not substantially
similar to the copyrighted work.
SeeComputer Assocs. Int’l, Inc. v. Altai,
Inc., 982 F.2d 693, 714 (2d Cir. 1992)
(affirming district court finding of no infringement where
‘“there remained
virtually no lines of code that were identical’”).

16.

To claim non-statutory damages for copyright
infringement, a plaintiff must show
that it was injured by the alleged infringement. SeeGetaped.Com, Inc. v.
Cangemi, 188 F. Supp. 2d 398, 404 (S.D.N.Y. 2002) (affirming
magistrate’s
recommendations rejecting claim for actual damages where plaintiff
“failed to
offer sufficient evidence to show a causal connection between its losses and
defendants’ infringement.”).

17.

Where the material infringed is minimal in relation to
the infringing work as a
whole, damages may be scaled down accordingly. SeeCream
Records, Inc. v.
Jos. Schlitz Brewing Co., 754 F.2d 826, 828 (9th Cir. 1985)
(affirming district
court award of “[o]ne-tenth of 1 percent” of
defendant’s profits where the
infringed material was “miniscule”).

18.

The availability of suitable alternatives and substitutes
may be used to reduce the
amount of damages. SeeLawton v. Melville Corp., 116
F.3d 1472, 1997
WL346129, at *1 (Table) (2d Cir. 1997) (affirming district court
decision using
“the availability of alternative suitable photographs” as
a factor in determining
reasonable royalty damages).

19.

Actual damages are not available where plaintiff has
suffered no harm. SeeLawton v. Melville Corp., 116 F.3d 1472, 1997 WL
346129, at *1 (Table) (2d
Cir.1997) (holding that “[w]here, as here, there is no evidence
that market value
of the copyright owner’s work was diminished as a result of the
infringement, a
trial court may properly refuse to award actual damages”).

20.

Some remedies are unavailable to the plaintiff where
defendants derived no
profits from the infringement. SeeBrown v. McCormick,
87 F. Supp. 2d 467
(D.Md. 2000) (holding that because defendants “lost money on
the Movie [which
incorporated the infringed material], [] there are no profits to
share”).

Selected Questions re SCO’s Copyright
Claims

1.

Who owns the material;

2.

Who wrote the material and when;

3.

To whom has the material been licensed, when and on
what terms;

4.

Whether the material is an idea;

5.

Whether the material is a procedure, process, system or
method of operation;

6.

Whether the material is a concept, principle, or discovery;

7.

Whether the material is unoriginal;

8.

Whether the material can be expressed in only a limited
number of ways;

9.

Whether the material is dictated by the compatibility
requirements of other
programs with which a program is designed to operate in
conjunction;

10.

Whether the material is dictated by programming standards;

11.

Whether the material is dictated by programming practices;

12.

Whether the material is dictated by computer hardware
design standards;

13.

Whether the material is dictated by the practices
and/or demands of the industry
being serviced;

14.

Whether the material is in the public domain;

15.

Whether there is substantial similarity;

16.

Whether IBM has copied and distributed the material;

17.

Whether the material was offered to Linux and if so as
of when;

18.

Whether the material was ever accepted into Linux;

19.

How important the material is to Linux;

20.

Whether the material has substitutes or replacements;

21.

Whether the material’s presence has had any
impact on SCO;

22.

Whether the material’s presence in Linux has
resulted in any benefit to IBM.

Selected Questions re SCO’s Contract
Claims

1.

Who owns the material;

2.

Who wrote the material and when;

3.

To whom has the material been licensed and when;

4.

On what terms the material has been licensed;

5.

To whom the material has been disclosed and when;

6.

On what terms the material has been disclosed;

7.

Whether IBM has ever had anything to do with the
material and what;

8.

Whether the material was offered to Linux and if so
as of when;

9.

Whether the material was ever accepted into Linux;

10.

How important the material is to Linux;

11.

Whether the material has substitutes;

12.

Whether the material could be replaced;

13.

Whether the material’s presence has had any
impact on SCO;

14.

Whether the material’s presence in Linux has
resulted in any benefit to IBM.